The writ against a disseisor was for "so much land and its appurtenances," which must mean that he who had the land even wrongfully had the appurtenances.So Bracton says an action is in rem "whether it is for the principal thing, or for a right which adheres to the thing,...as when one sues for a right of way,...since rights of this sort are all incorporeal things, and are quasi possessed and reside in bodies, and cannot be got or kept without the bodies in which they inhere, nor in any way had without the bodies to which they belong." And again, "Since rights do not admit of delivery, but are transferred with the thing in which they are, that is, the bodily thing, he to whom they are transferred forthwith has a quasi possession of those rights as soon as he has the body in which they are." There is no doubt about the later law, as has been said at the outset.
We have thus traced two competing and mutually inconsistent principles into our law.On the one hand is the conception of succession or privity; on the other, that of rights inhering in a thing.Bracton seems to have vacillated a little from a feeling of the possibility of conflict between the two.The benefit of a warranty was confined to those who, by the act and consent of the grantee, succeeded to his place.It did not pass to assigns unless assigns were mentioned.Bracton supposes grants of easements with or without mention of assigns, which looks as if he thought the difference might be material with regard to easements also.He further says, that if an easement be granted to A, his heirs and assigns, all such by the form of the grant are allowed the use in succession, and all others are wholly excluded. But he is not speaking of what the rights of a disseisor would be as against one not having a better title, and he immediately adds that they are rights over a corporeal object belonging to a corporeal object.
Although it may be doubted whether the mention of assigns was ever necessary to attach an easement to land, and although it is very certain that it did not remain so long, the difficulty referred to grew greater as time went on.It would have been easily disposed of if the only rights which could be annexed to land were easements, such as a right of way.It then might have been said that these were certain limited interests in land, less than ownership in extent, but like it in kind, and therefore properly transferred by the same means that ownership was.Aright of way, it might have been argued, is not to be approached from the point of view of contract.It does not presuppose any promise on the part of the servient owner.His obligation, although more troublesome to him than to others, is the same as that of every one else.It is the purely negative duty not to obstruct or interfere with a right of property. But although the test of rights going with the land may have been something of that nature, this will not help us to understand the cases without a good deal of explanation.For such rights might exist to active services which had to be performed by the person who held the servient estate.It strikes our ear strangely to hear a right to services from an individual called a right of property as distinguished from contract.Still this will be found to have been the way in which such rights were regarded.
